The appeal of Mr Beavis has now been held at the Supreme Court.
The case regards a charge of £85 ParkingEye imposed on Mr Beavis for overstaying when he had problems at Staples (a shop on site); Staples took a lot longer to print than expected.
This was the fifth hearing regarding the case as it has wended its way through the legal system. The hearing was held in conjunction with Cavendish Square Holding BV v Talal El Makdessi, which also involves the enforceability of penalty clauses in contracts. Makdessi took the first two days of the hearing; the parking case occupied the last day.
Their Lordships threw an immediate curve-ball at Mr Beavis's counsel, John de Waal QC. They could not agree whether the charge was in fact for breach of contract at all, but might be a contractual charge, in which case the doctrine of penalties did not apply. There might even have been no contract at all (as Mr Foster pointed out in hearing number 3), but just a licence to park.
This threw Mr de Waal who took some time to recover, but came back to get his points in once their Lordships moved on to those areas which were listed as the ones to consider.
The Consumer Association representative Christopher Butcher QC was next and he was very strong, putting his points across forcefully.
Jonathan Kirk QC then had 15 minutes on behalf of ParkingEye before lunch. After lunch he continued, before Mr de Waal and Mr Butcher had a brief rebuttal.
Due to the 'off-piste' nature of the original questioning, their Lordships took the unusual step of allowing written arguments on the point of Contractual Charge, to be delivered next week. Respnses were allowed, but strongly discouraged.
The final judgment is not expected to be handed down before October.
The Prankster will have a fuller analysis in due course.
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Noted that Jonathan said regarding the BPA and its code of conduct that Parkingeye had to be a member of the BPA and follow its code of conduct in order to obtain keepers details. Well as we all know you don't have to be a member of the BPA to get the details,you could also get them by being a member of the "IPC" or simply make a manual V888 request to the DVLA. So did he "mislead" the good Lords?
ReplyDeleteJDW was less than impressive.
ReplyDeleteButcher had his blade well sharpened.
Again noted that Jonathan suggested that the type of shops on the retail park were not the type you would not spend 2 hours in! Totally a speculative comment with no evidence produced to substantiate it.Did he "mislead" the good Lords?
ReplyDeleteThe trap the motorist falls into is the very fact there are a number of retailers and many mistakenly visit more than one.
DeleteIf there's a shoe shop there my wife could spend her holoidays in it.
DeleteFinally if the Lords could not agree that nature of the charge how on earth do they expect the less "sophisticated" member of the public to be able too!!!!
ReplyDeleteOne of their lordships picked up on the £85 for parking outside a marked bay. Quite rightly' he said if one car parked outside a marked bay all the rest in the row would have to follow much to the financial advantage of PE.
ReplyDeleteOne point I don't think the court picked up on was whether Beavis or any other motorists actually read the signs.
How many times have anybody read the T&C's downloading a computer programme or just ticked the box stating they had done so?
The law says that it is only necessary to take reasonable steps to bring a clause to the attention of the contracting party (Parker v South Eastern Railway). Indeed, this is the case even where the contracting party could not possibly have read the clause, e.g. where they are illiterate (Thompson v LMS)
DeleteIt was common ground at the first trial that there was ample signage at this particular retail park so I imagine that is why it was not brought up.
The problem here is that terms like 'reasonable', 'ample' and 'adequate' are subjective. The validity of the compliance with these terms is usually determined by third parties (judges) AFTER the non compliance has been alleged.
DeleteSo the question is, how do you establish a benchmark in each case without inspecting each site independently? What the operator might wish to claim is adequate in quantity,size and style might be right on paper but ludicrous in fact but a clever lawyer might well be able to persuade a judge otherwise.
I don't think there is a simple way of resolving this argument.
When you cut through all the "M'luuuds" it all looked a bit amateurish.The body language of the Judges was interesting, they looked anxious at first light. Kirk was slick, J d W was less slick. The guy from the CA with the wavy hair pulled it all back. I suspect M'lords should be able to cut through the bull once the camera's are put away.
ReplyDeleteDoes this not help answer the good Lords dilemma PE V Beavis?PE don't pay VAT do they? http://taxdisputes.co.uk/2013/09/hmrc-value-added-tax-parking-penalty-fines-vat-taxable-supply-contractual-damages/
ReplyDeleteOff topic a bit but this one single case, in terms of cost, must have seriously overshadowed the entire total of actual cases pre keeper liability. Patrick Trouser-Fire must be really proud of himself.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteI've just viewed the whole video of the proceedings again..... YAWN.....
ReplyDeleteIt makes intersting watching though once the intial disappointment of de Waal's performace is put to one side.
In particular ParkingEye's submission of the contractual terms being fair in accordance with current and the forthcoming legislation is VERY wrong. The need to show clearly what the contract is, what the terms and conditions of it are etc are paramount.
You only have to look at their signs. Nowhere on them is any statement of a contract being formed. It tells of a payment for breach of conditions but there's no contractual obligation here.
The words "Failure to comply with the following" does not make any contractual "offer". So clarity of purpose is a no brainer. There is none at all.
The submission that each driver who enters does so of their own free will and can choose to park somewhere else is a complete phallacy. I don't know of that particular car park in Chelmsford, but the ones I do know of, in similar out of town shopping complexes have little to offer as an alternative. Even so, if they aren't on the doorstep of the shops, most drivers would go to another retail park instead. That would be detrimental to those shops on that particular complex.
On the subject of the driver reading, or being made aware of (which is another thing altogether) of the entry signs, this is a grossly miscalculated submission to the Lords.
Take the MetroCentre for instance. This has spaces for 10,000 cars. If each and every one of them stopped at the car park entry point for the driver to read and digest the contents of the signs this would result in a tailback of immense proportions stretching back for many miles.
The display of the signs is purely a necessity for their AOS Code of Practice. Without them they cannot argue (though many do) that they have complied with all the signage requirtements.
This an operation of stealth. Put out signs that nearly all drivers pass at speed without proper opportunity to read them, then hit them with charges for overstaying in the car park to spend their valuable wages on shops who otherwise welcome them there.
The submission of the implications of the NEW consumer legislation, not yet in effect has no part to play in the situation anyway. Just as you can't make a retrospective change of law, neither can you use one that isn't yet in the public domain. So that's a right smoke screen, not that it's particlurly useful to them as they seem to think anyway.
I know not whether the next bit is useful but it very well could be.
ReplyDeleteThis relates to the "requirement" for the free parking as part of a nil hereditament in relation to the rateable value of the car park.
This is explored for the Metrocentre in the link below but is common to most other out of town facilities.
Link: http://forums.pepipoo.com/index.php?s=408dbe37ab0f649709e7c66560af2123&showtopic=74884&view=findpost&p=857094
On the question of whether the charge is excessive and unconscionable, PE put their operational costs forward to substantiate the amount. We all know that normal costs such that can be described as operational expenses, ie rates, wages etc cannot be part of the calculation of proportionality. However there is another cost that no-one seems to have put forward for exclusion to the overheads of PE.
ReplyDeleteThat is the cost to POPLA for their appeals. This is supposedly free to the motorist. Including the cost of it in the PCN charge is passing it back again.
Someone who knows the number of appeals submitted to POPLA should be able to do some useful maths here to bring about the true picture.